Fr. Thomas Kurian v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 03RD DAY OF JUNE 2019 / 13TH JYAISHTA, 1941** **Crl.MC.No. 7240 of 2017** **CC NO.1184/2016 ON THE FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, KOTTAYAM CRIME NO. 434/2016 OF PAMPADY POLICE STATION, KOTTAYAM** ## **PETITIONERS/ACCUSED:** - **1 FR. THOMAS KURIAN, KANDANTHARA VEEDU, KUMARAKOM, KOTTAYAM DT.** - **2 R.K.ABRAHAM, RAJ CHRISTI BHAVAN,VELLOOR PO., PAMPADY, KOTTAYAM DT.** - **3 STEPHEN VARGHESE, PARAPPALLIL VEEDU, VELLOR, PO., KOTTAYAM DT. BY ADV. SRI.B.S.SIVAJI** ## **RESPONDENTS/STATE:** - **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** - **2 THE STATION HOUSE OFFICER, PAMPADY POLICE STATION, PAMPADY PO., KOTTAYAM DISTRICT, PIN-686502.** - **3 K.K.SOMAN, S/O. KOCHIKKA, MUNDAMATTOM HOUSE, VADAKKENADA, THIRUNAKKARA, KOTTAYAM DT.PIN-686001 BY ADV.SRI.IEANS.C.CHAMAKKALA BY SR. PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No. 7240 of 2017 2 ## **ORDER** This petition is filed under Section 482 of the Cr.P.C. 2. The petitioners herein are the accused Nos.1 to 3 in C.C No.1184 of 2016 on the file of the Judicial First Class Magistrate Court-I, Kottayam, wherein they face accusation of having committed offences punishable under Section 420 r/w Section 34 of the IPC. 3. The facts germane to the filing of the instant petition lie in a narrow compass. The 1[st] petitioner herein is the Vicar of St.Thomas Jacobite Church, Velloor. The petitioners 2 and 3 are the members of the church committee. A lucky draw was announced by the petitioners for amassing money to carry out the renovation of the St.Thomas Jacobite Church, Velloor. Various prizes were announced for the winners. The 1[st] prize offered was a Ford Figo Car. They distributed coupons worth Rs.1,000/- and the de facto complainant was induced to purchase two coupons. Later, they failed to conduct the lucky draw. According to the 3[rd] respondent, the petitioners had colluded to siphon off the money that was collected purportedly for renovating the Church and had defrauded the 3[rd] respondent and others. Crl.MC.No. 7240 of 2017 3 4. The learned counsel appearing for the petitioners submitted that no offence is made out from the averments in the complaint or in the final report. According to the learned counsel, the lucky draw had to be canceled as the church committee failed to collect the necessary amount to disburse the prizes as assured. A general body of the church committee was held on 10.04.2016 and it was decided to return the money with interest to all the persons, who had purchased the lucky draw coupons. As per the decision of the committee, a public notice was issued in the vernacular newspaper having wide circulation that the amount collected from the public would be returned with interest and those persons, who had purchased the coupons were requested to come to the Church. With oblique motive, the 3[rd] respondent proceeded to lodge a criminal complaint against the petitioners and the Police without conducting a proper investigation, has filed the final report. It is submitted that the subject matter of the dispute is of a civil nature and the criminal complaint constitutes an abuse of process of the Court. 5. The learned counsel appearing for the 3[rd] respondent has very strenuously opposed the prayer. It is submitted that it was much after the registration of the crime that the committee had decided to Crl.MC.No. 7240 of 2017 4 return the money and had published the notice in the newspaper. It is submitted that the petitioners had acted with intent to deceive the 3[rd] respondent and they cannot escape from the prosecution proceedings. 6. I have heard the learned Public Prosecutor as well and have perused the final report. 7. It is admitted by both sides that a lucky draw was announced and several coupons were sold by the petitioners. It is borne out from the records that the 3[rd] respondent had purchased two coupons worth Rs.1,000/- each. The church committee met and they decided not to proceed with the lucky draw as they failed to collect the necessary amount for disbursing the prizes which included a car, home appliances etc. The decision which was taken by the committee was published in the local newspaper as well. 8. Now the question is whether the offence of cheating as alleged in the final report is made out. Section 415 of the Indian Penal Code reads thus: “Section 415. Cheating.- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any Crl.MC.No. 7240 of 2017 5 person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.” The ingredients to constitute an offence of cheating are as follows: i) there should be fraudulent or dishonest inducement of a person by deceiving him; ii) (a) the person so deceived should be intentionally induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived; and iii) in cases covered by (ii) (b) above, the act of omission should be one which caused or is likely to cause damage or harm to the person induced in body, mind, reputation or property.” 9. A fraudulent or dishonest inducement is an essential ingredient of the offence. A person, who dishonestly induces another person to deliver any property, is liable for the offence of cheating. Section 420 of the IPC reads thus: Crl.MC.No. 7240 of 2017 6 “Section 420. Cheating and dishonestly inducing deliver of property.- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable to being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” The ingredients to constitute an offence under Section 420 are as follows: i) A person must commit the offence of cheating under Section 415; and ii) The person cheated must be dishonestly induced to (a) deliver property to any person; or (b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security.” 10. In other words, cheating is an essential ingredient for an act to constitute an offence under Section 420. Only a person, who dishonestly induces another person to deliver any property is liable for the offence of cheating. In the present case, looking at the allegations in the complaint on the face of it, I am of the view that the ingredients of the offence are not made out. Excepting the bald allegations that Crl.MC.No. 7240 of 2017 7 the petitioners did not return a sum of Rs.2,000/- to the 3[rd] respondent and that the petitioners utilised the amounts, either by themselves or for some other work, there is no iota of allegation as to the dishonest intention. The records reveal that the petitioners had offered to return the amount collected together with interest. A purely civil dispute has been transformed into a criminal offence for reasons best known to the 3[rd] respondent. 11. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where, in the opinion of the court, chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may, while taking into consideration the special facts of a case also, quash the proceeding even though it may be at a preliminary stage. (See **Madhavrao Jiwajirao Scindia and Ors. v.** Crl.MC.No. 7240 of 2017 8 **Sambhajirao Chadrojirao Angre and Ors.** [AIR 1988 SC 709]; **Prof. R.K. Vijayasarathy v. Sudha Seetharam** [2019 (1) KLD 532]. 12. Having considered the entire facts and in the light of the above precedents, I am of the view that this is one of those rare and exceptional cases, wherein this Court will be justified in terminating the criminal proceedings by invoking the powers under Section 482 of the Code. In the result, this petition is allowed. Annexure-A3 final report and all further proceedings pursuant thereto against the petitioners in C.C. No.1184 of 2016 on the file of the Judicial First Class Magistrate Court-I, Kottayam, are quashed. ## **SD/-** **RAJA VIJAYARAGHAVAN V., JUDGE** **//TRUE COPY// P.A. TO JUDGE** IAP Crl.MC.No. 7240 of 2017 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1: CERTIFIED COPY OF THE CMP 2016, DATED 22.3.2016 FIELD THE 3RD RESPONDENT** **ANNEXURE A2: CERTIFIED COPY OF THE FIR NO.434/2016 DATED 24.3.2016** **ANNEXURE A3: CERTIFIED COPY OF THE FINAL REPORT NO.1204 DATE 23.6.2016** **ANNEXURE A4: TRUE COPY OF THE MINUTES OF GENERAL BODY MEETING OF THE CHURCH HELD ON 3.3.2013 ANNEXURE A4(A): TRUE COPY OF THE MINUTES OF THE GENERAL BODY MEETING OF THE ST.THOMAS YACOBA SURIYANI CHURCH HELD ON 10.4.2016** - **ANNEXURE A5: TRUE COPY OF THE ADVERTISEMENT GIVEN ON 14.4.2016 I MALAYALA MANORAMA** - **ANNEXURE A6: TRUE COPY OF THE LUCKY DRAW COUPON OF ST, THOMAS JACOBITE SYRIYAN CHURCH, VELLOOR** - **ANNEXURE A7: TRUE CERTIFED COPY OF THE CHARGE DATED 8.8.2017 BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I,KOTTAYAM** **ANNEXURE A8: TRUE CERTIFIED COPY OF THE ORDER SHEET IN CC NO.1184/2016 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOTTAYAM**